# Rajeev Kumar v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 847
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-19
- **Case number:** Writ-A No. 10999 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajeev-kumar-v-state-of-u-p-ors-49425
- **Pages:** 10

## Headnote

A. Service Law - Punishment - Dismissal
from service - Charge of embezzlement -
Disciplinary proceeding - Right of cross
examination
-
Charges
were serious
enough to lead to the possible imposition
of a major penalty - No date, time and
place was fixed for the inquiry - Effect -
Held, where slackness in performance of
duties etc. is the substance, it was
incumbent upon the establishment, in the
first instance, to examine witnesses and
prove the charges against the petitioner,
with opportunity to the petitioner to
cross-examine such witnesses. (Para 11
and 13)
B. Service Law - Disciplinary enquiry -
Oral hearing - Meaning - By oral inquiry,
is meant that the establishment examines
witnesses on their behalf, in the first
instance, to prove the charges before the
Inquiry Committee through a presenting
officer. It has nothing to do with orally
hearing the delinquent employee. (Para
15)
Writ petition allowed. (E-1)
List of Cases cited:

## Text

846 INDIAN LAW REPORTS ALLAHABAD SERIES
open to be dealt with under para 2.6(iv) last
mentioned, because it is not a case where
the petitioner completed the course of study
and failed to earn his degree. It is a case
where he abandoned the course. As already
remarked, the petitioner ought to have
informed
the
respondents
about
his
decision to abandon or the circumstances
that led him to give up the course early into
the first semester, but, in whichever manner
the respondents may deal with the aforesaid
lapse on the petitioner's part, it would not
constitute unauthorized absence from duty
or overstaying the sanctioned leave within
the meaning of Rule 24.9 of the NTPC
Service Rules read with Rule 26(2)(vi)(e)
of the CDA Rules. Therefore, the decision
by the respondents to consider the
petitioner's services as abandoned cannot
be countenanced.

29. In the result, this writ petition
succeeds and shall stand allowed. The
impugned orders dated 31.03.2020 and
03.03.2023 passed by the Senior Manager
(HR-EB), Rihand Super Thermal Power
Project, Bijpur, Sonbhadra are hereby
quashed. A mandamus is issued to the
respondents to reinstate the petitioner
forthwith with seniority and continuity of
service, though no emoluments would be
payable for the period by the terms of the
leave.

30. It shall be open to the respondents
to take action against the petitioner in
abandoning the course of study for which
study leave was taken as permissible under
the rules.

31. There shall be no order as to costs.
----------
(2023) 11 ILRA 847
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2023
BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 10999 of 2023

Rajeev Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rama Nand Shukla, Sri Mani Shanker
Pandey

Counsel for the Respondents:
C.S.C., Sri Abhishek Srivastava, Sri Brajesh
Pratap Singh, Sri Ram Bahadur Singh

A. Service Law - Punishment - Dismissal
from service - Charge of embezzlement -
Disciplinary proceeding - Right of cross
examination
-
Charges
were serious
enough to lead to the possible imposition
of a major penalty - No date, time and
place was fixed for the inquiry - Effect -
Held, where slackness in performance of
duties etc. is the substance, it was
incumbent upon the establishment, in the
first instance, to examine witnesses and
prove the charges against the petitioner,
with opportunity to the petitioner to
cross-examine such witnesses. (Para 11
and 13)
B. Service Law - Disciplinary enquiry -
Oral hearing - Meaning - By oral inquiry,
is meant that the establishment examines
witnesses on their behalf, in the first
instance, to prove the charges before the
Inquiry Committee through a presenting
officer. It has nothing to do with orally
hearing the delinquent employee. (Para
15)
Writ petition allowed. (E-1)
List of Cases cited:

1. Roop Singh Negi Vs P.N.B. & ors. ; (2009) 2
SCC
570
11 All. Rajeev Kumar Vs. State of U.P. & Ors.
847
2. Smt. Karuna Jaiswal Vs St. of U.P.; 2018 (9)
ADJ 107 (DB) (LB)
3. St. of U.P. & anr. Vs Kishori Lal & anr.; 2018
(9) ADJ 397 (DB) (LB)
4. Ranveer Singh Vs U.O.I. & ors. ; 2021 (5)
ADJ 136
5. Prem Narain Singh Vs St. of U.P. & anr.; 2023
(2) ADJ 580
6. Allahabad Bank & ors. Vs Krishna Narayan
Tewari; (2017) 2 SCC 308

(Delivered by Hon'ble J.J. Munir, J.)

1. Heard Mr. Mani Shanker Pandey,
learned Counsel for the petitioner, Mr.
Abhishek Srivastava, learned Counsel
appearing on behalf of respondent Nos. 2
and 3, Mr. Ram Bahadur Singh, Advocate
holding brief of Mr. Brajesh Pratap Singh,
learned Counsel for respondent Nos. 4, 5
and 6 and Ms. Monica Arya, learned
Additional
Chief
Standing
Counsel
appearing on behalf of respondent No. 1.

2. This writ petition is directed
against the order dated 07.06.2023 passed
by
the
Managing
Director,
Uttar
Pradesh Power Corporation Limited,
dismissing the petitioner from the
Corporation's service.

3. A counter affidavit was filed on
behalf of the U.P. Power Corporation on
27.07.2023 by Mr. Abhishek Srivastava,
learned Counsel appearing on behalf of
respondent Nos.2 and 3 and original
records of the inquiry also produced before
the Court on the date last mentioned. These
records have been retained and perused. A
statement was made on behalf of learned
Counsel for the parties on 27.07.2023 that
they do not intend to file any further
affidavits. Accordingly, the writ petition
was admitted to hearing and heard
forthwith on the said date. Judgment was
reserved.

4. The petitioner was an Executive
Agent and functioning as the Head Cashier
(Revenue) at the Vidyut Vitran Khand-I,
Baghpat. At the relevant time, one Suresh
Babu, who held the post of a Technician
(Grade-II) with the Pashchimanchal Vidyut
Vitran Nigam Limited, was assigned duties
of the cashier. He was later on promoted in
the month of March, 2019 to the post of a
Junior Engineer, going by his cadre.
According to the petitioner, after Suresh
Babu's promotion, the Managing Director,
Pashchimanchal Vidyut Vitran Nigam Ltd.,
on account of some suspicion relating to
accounts, directed reconciliation to be
made. It was discovered that there was
embezzlement committed by Suresh Babu
to the tune of Rs.3,68,25,552/- out of the
revenues collected on behalf of the
Corporation. A First Information Report
was lodged by the Executive Engineer,
Vidyut Vitran Khand-I, Baghpat with the
Police, that came to be registered as Crime
No.300 of 2019, under Section 409 IPC,
Police Station Baghpat, District Baghpat. In
the FIR, Suresh Babu was nominated as the
main accused and besides him, four other
persons, to wit, the petitioner (Rajeev
Kumar), Vikalp Mahesh, Ishpal Singh and
Rajveer
Singh.
The
Police
after
investigation submitted a charge-sheet
dated 13.11.2019 against Narendra alias
Pintu
and
Fakhruddin
for
offences
punishable under Sections 408/120-B IPC
and exculpated the petitioner with the
remark that his implication in the case was
found false upon investigation.

5. It is the petitioner's case that he was
suspended pending enquiry on 16.05.2019
and during his suspension on 07.09.2019,
he was served with a charge-sheet dated
848 INDIAN LAW REPORTS ALLAHABAD SERIES
07.09.2019. He submitted his reply dated
20.09.2019, denying the charges. The
petitioner, amongst other things, said that
he was neither working with the Vidyut
Vitran Khand-I, Baghpat since 01.05.2015
to 16.05.2019, nor during the period
01.05.2015 to 16.05.2019 and 08.11.2013
to 13.12.2014.

6. It is the petitioner's case that he
has, therefore, no concern about the
embezzlement, which happened in a
different period of time between the years
2013 - 14. The petitioner has asserted that
he was working with the Vidyut Vitran
Khand-I, Baghpat for a short time in the
year 2014-15. It is next made out that the
two charges framed against the petitioner in
the charge-sheet allege no embezzlement
by him, but negligence as the Chief
Cashier, leading to embezzlement by
Suresh Babu, who is at the centre stage of
the charge, subject matter of this enquiry. It
is also said that the petitioner had informed
his
superior
Authorities
about
the
embezzlement, but no action was taken. It
is also pleaded that due to lack of training
in handling the online billing system, nor
the provision of an ID to do online billing
work, or supervise the same, the petitioner
faced hardship in discharging his duties, so
far as Charge No.1 goes. Charge No.2 is an
amalgam of about five different lapses
committed
by
the
petitioner
in
his
supervisory duties, which led to the
embezzlement by Suresh Babu.

7. The petitioner offered defences on
each of these lapses that he has pleaded in
the writ petition also. A copy of the inquiry
report has not been annexed to the writ
petition. It is averred in paragraph No.30 of
the writ petition that the petitioner appeared
before the Inquiry Committee while the
inquiry was in progress. But, there is
nothing said about a copy of the inquiry
report being given to him. It is averred that
he submitted a reply to the Managing
Director on 31.12.2021, that would show
that he was given a show cause post
inquiry, to which he replied. In the absence
of the inquiry report and, particularly, in
view of the fact that this Court wanted to
know if the employers had examined any
witnesses during the inquiry to find the
petitioner guilty on a charge, which led to
the imposition of a major penalty, the
records of the inquiry were summoned.

8. Our observations about the inquiry
report, which we have looked into in the
records, will be alluded to later in this
judgment. At this stage about the facts
being noticed, suffice it to say that the
inquiry report is a document dated nil,
which is available on the original records
between pages 161-167. Acting on this
inquiry report, the Managing Director,
Pashchimanchal Vidyut Vitran Nigam Ltd.
issued
a
show
cause
notice
dated
04.12.2021, a fact gathered from the reply
submitted to it by the petitioner, a copy
whereof is annexed as Annexure No.11 to
the writ petition. The show cause notice
being one dated 04.12.2021, and the date of
the enquiry report being 25.10.2021, is also
corroborated from an averment to that
effect, and some annexed record in
paragraph No.7 of the counter affidavit,
filed on behalf of respondent Nos.2 and 3.

9. The petitioner's reply also shows
that in the show cause notice, the date of
the inquiry report, which is not mentioned
on the original, has been indicated to be a
document dated 25.10.2021. The best that
can be made of it, is that the inquiry report,
bearing no date, was submitted to the
Managing Director along with a cover
memo dated 25.10.2021, and that has been
11 All. Rajeev Kumar Vs. State of U.P. & Ors.
849
regarded by the petitioner, and, may be by
the respondents also, as the date of the
inquiry report. The petitioner has submitted
a reply to the show cause notice on
31.12.2021. Thereafter, in due course, the
impugned order dated 07.06.2023 has been
passed by the Managing Director, U.P.
Power Corporation.

10. Aggrieved, this petition has been
instituted under Article 226 of th

11. A perusal of the enquiry report, as
also the entire record of the inquiry, does
not indicate at all that the Inquiry
Committee held proceedings according to
the salutary principles governing procedure
for holding such proceedings, where
charges are serious enough to lead to the
possible imposition of a major penalty. The
record of the inquiry or the Inquiry report
itself does not indicate that a date, time and
place was fixed for the inquiry with notice
to both the charge sheeted employee and
the establishment. The essentials of a
domestic enquiry into grave charges
requires that the Inquiry Committee should
sit as a detached Tribunal, before whom the
establishment/ employer ought to lead
evidence, both documentary and oral in
support of the charges through a presenting
officer
duly
appointed.
The
Inquiry
Committee in this case do to not appear to
have sat as independent arbiters, before
whom the employers/ establishment led
evidence, both oral and documentary,
through a presenting officer. Contrary to
this,
the
members
of
the
Inquiry
Committee, who are otherwise officers of
the same establishment, did not forsake
their role as part of the establishment and
virtually sat to hold the disciplinary inquiry
in the manner of an investigation or a factfinding inquiry, glossing through papers
offered by the establishment and hearing
the petitioner orally about his defence. This
is not what the salutary principles about the
procedure
of
a
domestic
enquiry
contemplate.

12. The namesake of an inquiry that
has been undertaken by the Committee, has
held the petitioner guilty of Charge No.1
and partly guilty of Charge No.2. This
Court has strained hard to see through the
records produced, if there were any
proceedings of the inquiry, recorded on
daily order-sheets. We did not find any
schedule for the inquiry, where the Inquiry
Committee, comprising two officers of the
establishment, sitting as impartial arbiters,
would have intimated any date, time and
place
of
the
inquiry,
both
to
the
establishment and the petitioner. We also
did not find that any witness was examined
in support of the two charges, which in this
case was all the more important, given the
nature of the charges against the petitioner.
The charge against the petitioner is not
about
committing
the
embezzlement
himself, but slackness in supervision.

13. There are a few letters written by
the petitioner to the higher officers
regarding the delay in submission of
challans by Cashiers. About two of these
letters dated 28.08.2018 and 21.11.2018, it
is remarked in whatever kind of a finding is
recorded by the Inquiry Committee that
these letters are self attested by the
petitioner, whereas the attestation should
have been secured from the Electricity
Distribution Division, Baghpat. We think
that in the matter of a charge of this kind,
where slackness in performance of duties
etc. is the substance, it was incumbent upon
the establishment, in the first instance, to
examine witnesses and prove the charges
against the petitioner, with opportunity to
the petitioner to cross-examine such
850 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses. No finding could have been
recorded against the petitioner by an
Inquiry Committee sitting behind a bureau
and flipping through papers made available
by the establishment and considering
themselves to be no more than officers of
the establishment, rather than independent
arbiters. We are convinced upon looking
through the records that the Inquiry
Committee did not follow the essentials of
the established procedure to hold a
disciplinary inquiry in the matter involving
the imposition of a major penalty. And, it
has certainly prejudiced the petition in the
outcome.

14. Mr. Abhishek Srivastava, learned
Counsel was at pains to show that in fact an
oral inquiry took place. He has drawn the
Court's attention to paragraph No.6 of the
counter affidavit, to say that it is evident
from a perusal of the letter dated
21.01.2020, asking the petitioner to appear
before the Inquiry Committee for personal
hearing, and, the fact, that in response the
petitioner appeared on 01.02.2020 before
the Inquiry Committee, that oral inquiry
was held, where he supported the contents
of his reply dated 20.09.2019, in answer to
the charge-sheet.

15. We are afraid that an oral hearing
of this kind does not at all fulfil the
requirements of holding what is called an
oral inquiry. By oral inquiry, is meant that
the establishment examines witnesses on
their behalf, in the first instance, to prove
the charges before the Inquiry Committee
through a presenting officer. It has nothing
to do with orally hearing the delinquent
employee. This misconception about the
procedure ought to be taken note of by the
respondents once and for all, so that
fundamental flaws of procedure that vitiate
the inquiry, may be eschewed.

16. About the requirements of the law
relating to the manner of holding a
departmental enquiry, reference may be
made to the authority of the Supreme Court
in Roop Singh Negi v. Punjab National
Bank and others, (2009) 2 SCC 570,
where it has been observed:

"14. Indisputably, a departmental
proceeding is a quasi-judicial proceeding.
The enquiry officer performs a quasijudicial function. The charges levelled
against the delinquent officer must be
found to have been proved. The enquiry
officer has a duty to arrive at a finding
upon taking into consideration the materials
brought on record by the parties. The
purported
evidence
collected
during
investigation by the investigating officer
against all the accused by itself could not
be treated to be evidence in the disciplinary
proceeding. No witness was examined to
prove
the
said
documents.
The
management witnesses merely tendered the
documents and did not prove the contents
thereof. Reliance, inter alia, was placed by
the enquiry officer on the FIR which could
not have been treated as evidence."

17. Again, in Smt. Karuna Jaiswal
v. State of U.P., 2018 (9) ADJ 107 (DB)
(LB), it has been held by a Division Bench
of this Court:

"15. The law in this regard is very
well-settled and does not need a reiteration,
however, we may refer to a judgment of
Hon'ble Supreme Court in the case of State
of Uttar Pradesh and others v. Saroj Kumar
Sinha, (2010) 2 SCC 772, wherein it has
clearly been held that Enquiry Officer acts
as a quasi judicial authority and his position
is that of an independent adjudicator and
further
that
he
cannot
act
as
a
representative
of
the
department
or
11 All. Rajeev Kumar Vs. State of U.P. & Ors.
851
disciplinary authority and further that he
cannot act as a prosecutor neither he should
act as a judge; his function is to examine
the evidence presented by the department
and even in the absence of the delinquent
officer, has to see as to whether the
unrebutted evidence is sufficient to bring
home the charges.

16. Hon'ble Supreme Court has
further held in the said judgment of Saroj
Kumar Sinha (supra) that it is only in case
when the Government servant, despite
notice, fails to appear during the course of
enquiry that Enquiry Officer can proceed
ex parte and even in such circumstances it
is incumbent upon the Enquiry Officer to
record the statement of witness.

17. In the instant case, no oral
enquiry was held, neither the petitioner was
given any notice to participate in any oral
enquiry by fixing date, time and place for
oral enquiry. It is only that the Enquiry
Officer after noticing that despite sufficient
time having been given to the petitioner,
she did not furnish her reply to the chargesheet, he proceeded to submit ex parte
report without conducting any oral enquiry
by fixing date, time and place for such an
oral enquiry. Accordingly, the Enquiry
Officer, in this case, has violated the
aforesaid principles, which clearly vitiates
the
enquiry
proceedings
and
any
punishment order based on such a vitiated
enquiry, is clearly not sustainable."

18. Also, in State of U.P. and
another v. Kishori Lal and another, 2018
(9) ADJ 397 (DB) (LB), the importance of
holding an oral inquiry, where witnesses
are examined first by the establishment to
prove charges, was emphasised by a
Division Bench of this Court at Lucknow in
terms of the following remarks:

"14. Now coming to the question,
what is the effect of non-holding of
domestic/oral inquiry, in a case where the
inquiry officer is appointed, oral inquiry is
mandatory. The charges are not deemed to
be proved suo motu merely on account of
levelling them by means of the chargesheet unless the same are proved by the
department before the inquiry officer and
only thereafter it is the turn of delinquent
employee to place his defence. Holding
oral enquiry is mandatory before imposing
a major penalty, as held by Apex Court in
State of U.P. and another v. T.P.Lal
Srivastava, 1997 (1) LLJ 831, as well as by
a Division Bench of this Court in Subhash
Chandra Sharma v. Managing Director and
another, 2000 (1) UPLBEC 541.''

15. In another case in Subhash
Chandra Gupta v. State of U.P., 2012(4)
ADJ 4 (NOC), the Division Bench of this
Court after survey of law on this issue
observed as under:

"It is well-settled that when the
statute provides to do a thing in a particular
manner that thing has to be done in that
very manner. We are of the considered
opinion that any punishment awarded on
the basis of an enquiry not conducted in
accordance with the enquiry rules meant
for that very purposes is unsustainable in
the eye of law. We are further of the view
that the procedure prescribed under the
inquiry rules for imposing major penalty is
mandatory in nature and unless those
procedures are followed, any out come
inferred thereon will be of no avail unless
the charges are so glaring and unrefutable
which does not require any proof. The view
taken by us find support from the
judgement of the Apex Court in State of
U.P. and another v. T.P.Lal Srivastava,
1997 (1) LLJ 831, as well as by a Division
852 INDIAN LAW REPORTS ALLAHABAD SERIES
Bench of this Court in Subash Chandra
Sharma v. Managing Director and another,
2000 (1) UPLBEC 541."

16. A Division Bench decision of
this Court in the case of Salahuddin Ansari
v. State of U.P. and others, 2008(3) ESC
1667, held that non holding of oral inquiry
is a serious flaw which can vitiate the order
of disciplinary proceeding including the
order of punishment has observed as under:

"10....... Non holding of oral
inquiry in such a case, is a serious matter
and goes to the root of the case.

11.A Division Bench of this
Court in Subash Chandra Sharma v.
Managing Director and another, 2000 (1)
UPLBEC 541, considering the question as
to whether holding of an oral inquiry is
necessary or not, held that if no oral inquiry
is held, it amounts to denial of principles of
natural justice to the delinquent employee.
The aforesaid view was reiterated in
Subash
Chandra
Sharma
v.
U.P.Cooperative Spinning Mills and others,
2001 (2) UPLBEC 1475 and Laturi Singh
v. U.P.Public Service Tribunal and others,
Writ Petition No. 12939 of 2001, decided
on 6.5.2005."

17. Even if the employee refuses
to participate in the enquiry the employer
cannot straightaway dismiss him, but he
must hold and ex parte enquiry where
evidence must be led vide Imperial
Tobacco Co. Ltd. v. Its Workmen, AIR
1962 SC 1348, Uma Shankar v. Registrar,
1992 (65) FLR 674 (All).

18. The Division Bench of this
Court in the case of Mahesh Narain Gupta
v. State of U.P. and others, (2011) 2 ILR
570, had also occasion to deal with the
same issue. It held:

"At this stage, we are to observe
that in the disciplinary proceedings against
a delinquent, the department is just like a
plaintiff and initial burden lies on the
department to prove the charges which can
certainly be proved only by collecting some
oral evidence or documentary evidence, in
presence and notice charged employee.
Even if the department is to rely its own
record/document
which
are
already
available, then also the enquiry officer by
looking into them and by assigning his own
reason after analysis, will have to record a
finding that hose documents are sufficient
enough to prove the charges.

In no case, approach of the
Enquiry Officer that as no reply has been
submitted, the charge will have to be
automatically proved can be approved. This
will be erroneous. It has been repeatedly
said that disciplinary authority has a right
to proceed against delinquent employee in
ex parte manner but some evidence will
have to be collected and justification to
sustain the charges will have to be stated in
detail. The approach of the enquiry officer
of automatic prove of charges on account
of
non
filing
of
reply
is
clearly
misconceived and erroneous. This is
against the principle of natural justice, fair
play, fair hearing and, thus, enquiry officer
has to be cautioned in this respect."

B The principal of law which
emanates from the above judgments are
that initial burden is on the department to
prove the charges. In case of procedure
adopted for inflicting major penalty, the
department must prove the charges by oral
evidence also."
11 All. Rajeev Kumar Vs. State of U.P. & Ors.
853

(emphasis by Court)

19. I also had occasion to consider the
issue in Ranveer Singh v. Union of India
and others, 2021 (5) ADJ 136 and Prem
Narain Singh v. State of U.P. and
another, 2023 (2) ADJ 580. In both the
aforesaid
decisions,
the
necessity
of
examining witnesses in support of the
charges, in a case involving the imposition
of a major penalty has been explained. In
the present case, as already said, no witness
has been examined by the establishment
and findings recorded acting on idle papers.
The enquiry is, therefore, ex facie flawed.
All proceedings taken on its basis are,
therefore, vitiated.

20. This Court may add that the
impugned order dated 07.06.2023 passed
by the Managing Director, on its own terms
also, hardly qualifies for a valid order by
the Disciplinary Authority. A perusal of the
said order shows that after a brief reference
to facts, there is a reference to the two
charges against the petitioner. In the next
part, the petitioner's defence to the two
charges has been set out. There is then a
brief reference to the fact of oral hearing
before
the
Inquiry
Committee
on
01.02.2020, to which we have already
made allusion hereinbefore. In the next part
of the order impugned, there is an elaborate
reference to the findings on the two charges
by the Inquiry Committee, setting forth all
that they have said. In the following part,
the petitioner's answer to the show cause
notice has been set forth with reference to
the two charges on the findings of the
Inquiry Committee. Doing all this, the
Managing Director has consumed ten of the
ten pages and a quarter of the total length
of his order. For his finding, after a
reproduction of all the material indicated
hereinbefore, the Managing Director has
expressed himself very cryptically in a few
lines, that read:

"अभ्यावेदन का परीक्षण :-

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एवं खण्ड के क्रवक्रभन्न रोकक्रडयों द्वारा राजस्व के र्द र्ें प्रक्रतक्रदन
क्रकतनी धनराक्रश प्राप्त की जा रिी िै व उसके सापेक्ष क्रकतनी धनराक्रश
बैंक र्ें अथवा र्ुख्य रोकक्रडया को आर0आर0 स्टेटर्ेन्ट के साथ
जर्ा की जा रिी िै इसका अनुश्रवर् करना उनका र्ुख्य दाक्रयत्व था
। यक्रद उनके द्वारा (Counterwise Daily Revenue
Collection Report ) का अनुश्रवर् क्रकया र्या िोता तो
राजस्व र्बन न िोता। उनके द्वारा एच०सी०एल० की कोई
आई०डी० न िोने का उल्लेख क्रकया र्या िै, क्रकन्तु उनके द्वारा
आई०डी० बनवाने िेतु क्या प्रयास क्रकये र्ये के सम्बन्ध र्ें कोई
उल्लेख निीं क्रकया र्या िै। वे राजस्व र्बन जैसे र्म्भीर र्ार्ले र्ें
कायिवािी न करने एवं अपने कत्वियों र्ें उत्तरदाक्रयत्वों र्ें क्रशक्रथलता
बरतने िेतु उत्तरदायी िै। उन पर लर्ाया र्या आरोप सं0-01 क्रसद्ध
तथा आरोप सं0-02 आंक्रशक रूप से क्रसद्ध िोता िै।"

21. It is, indeed, apalling that the
Disciplinary Authority should condemn the
petitioner, holding him guilty on a charge
leading to the imposition of the major
penalty, and record his findings in so
cryptic an expression that it is difficult to
understand how the Disciplinary Authority
has reasoned to reach the conclusion that
the petitioner is guilty. In this connection,
reference may be made to the authority of
the Supreme Court in Allahabad Bank
and others v. Krishna Narayan Tewari,
(2017) 2 SCC 308, where it is observed:

"7. We have given our anxious
consideration to the submissions at the Bar.
It is true that a writ court is very slow in
interfering with the findings of facts
recorded by a departmental authority on the
basis of evidence available on record. But it
is equally true that in a case where the
disciplinary authority records a finding that
854 INDIAN LAW REPORTS ALLAHABAD SERIES
is unsupported by any evidence whatsoever
or a finding which no reasonable person
could have arrived at, the writ court would
be justified if not duty-bound to examine
the matter and grant relief in appropriate
cases. The writ court will certainly interfere
with disciplinary enquiry or the resultant
orders passed by the competent authority
on that basis if the enquiry itself was
vitiated on
account of
violation
of
principles of natural justice, as is alleged to
be the position in the present case. Nonapplication of mind by the enquiry officer
or the disciplinary authority, non-recording
of reasons in support of the conclusion
arrived at by them are also grounds on
which the writ courts are justified in
interfering with the orders of punishment.
The High Court has, in the case at hand,
found all these infirmities in the order
passed by the disciplinary authority and the
appellate authority. The respondent's case
that the enquiry was conducted without
giving a fair and reasonable opportunity for
leading evidence in defence has not been
effectively rebutted by the appellant. More
importantly the disciplinary authority does
not appear to have properly appreciated the
evidence nor recorded reasons in support of
his conclusion. To add insult to injury the
appellate authority instead of recording its
own
reasons
and
independently
appreciating the material on record, simply
reproduced the findings of the disciplinary
authority. All told, the enquiry officer, the
disciplinary authority and the appellate
authority have faltered in the discharge of
their duties resulting in miscarriage of
justice. The High Court was in that view
right in interfering with the orders passed
by the disciplinary authority and the
appellate authority."

(emphasis by Court)

22. Since this Court is minded to send
back the matter to the respondents, if they
elect to pursue proceedings afresh against
the petitioner, it is imperative that all that
has been said hereinbefore about the
proceedings of the inquiry and the
obligations of the Disciplinary Authority
while writing his order, shall be borne in
mind.

23. In the result, this petition
succeeds and is allowed. The impugned
order dated 07.06.2023 passed by the
Managing Director, Uttar Pradesh Power
Corporation Limited, Lucknow is hereby
quashed. The respondents are ordered to
reinstate the petitioner in service forthwith,
and pay him current salary from the date of
this judgment. If, however, the respondents
choose to place the petitioner again under
suspension
in
view
of
the
liberty
hereinafter indicated, the petitioner shall be
paid his subsistence allowance regularly.
The respondents shall be at liberty to
undertake inquiry afresh in the matter, on
the basis of the charge-sheet, already
issued. The respondents in that event will
proceed, bearing in mind the guidance in
this judgment. If the respondents elect to
proceed against the petitioner as per liberty
given, it would be open to the respondents
either to reinstate the petitioner, assigning
him duties or not, but paying salary to him,
or place him under suspension pending the
inquiry to be held afresh. The question of
payment of back-wages shall depend upon
the outcome of the inquiry and the decision
taken
by
the
respondents
in
the
proceedings, if they elect to pursue such
proceedings. It is also ordered that if fresh
proceedings are taken, the same shall be
concluded
expeditiously,
wherein
the
petitioner shall cooperate. There shall be no
order as to costs.
11 All. Imtiyaz Ahamad Vs. The State of U.P. & Ors.
855

24. Let the original records be handed
over to Mr. Abhishek Srivastava, learned
Counsel appearing on behalf of the U.P.
Power
Corporation
for
their
onward
transmission to the respondents.
----------
(2023) 11 ILRA 855
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.10.2023

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Writ-A No. 11509 of 2023

Imtiyaz Ahamad ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shivendu Ojha, Sri Naushad Alam, Sri
Radha Kant Ojha (Sr. Adv.), Sri Ratnakar
Upadhyay

Counsel for the Respondents:
C.S.C., Sri Samarath Singh, Sri Sankalp
Narain

A.
Service
Law
-
UP
Intermediate
Education Act, 1921 - Section 16FF -
Minority institution - Officiating Principal
-
Appointment
of
an
ineligible
and
unqualified
candidate
-
Committee's
power - How far exemption from the
provision can be claimed - Held, though,
there is no quarrel to the proposition that
the Committee of Management of a
minority institution is free to choose any
incumbent to officiate but the same is not
an unfettered right so as to create a
situation
whereby
an
ineligible
and
unqualified person is being allowed to
man the post. Otherwise it would create
not only anarchy but would also be
detrimental
to
the
interest
of
the
institution. (Para 33)
Writ petition allowed. (E-1)
List of Cases cited:
1. Secretary Malankara Syrian Catholic College
Vs T. Jose & ors. ; (2007) 1 SCC 386
2. Mohd. Ayub Khan Vs State; 2008 (10) ADJ
477
3. Nisar Ahmad Vs Registrar/Inspector of Arabi,
Farsi, Madarsas & ors. ; 2006 (62) ALR 919
4. Ashok Kumar Malhotra & ors. Vs St. of U.P. &
ors. ; 2018 (8) ADJ 511
5. N. Ammad Vs Manager, Emjay High School &
ors. ; AIR 1999 SC 50
6. SK. MD. Rafique Vs Managing Committee,
Contai Rahamania High Madrasah & ors. ; 2020
(4) ESC 863 (SC)
7. Writ A No. 45123 of 2008; Sunil Kumar
Sharma Vs State of U.P. & others decided on
16.8.2023
8. Writ A No. 44485 of 2011, Smt. Praveena
Yadav Vs St. of U.P. & ors. decided on 8.8.2011

(Delivered by Hon'ble Vikas Budhwar, J.)

1. Heard Sri Radha Kant Ojha,
learned Senior Counsel, assisted by Sri
Ratnakar Upadhyay, Sri Naushad Alam,
learned counsels for the writ petitioner, Sri
Pradeep Kumar Shahi, learned Additional
Chief Standing Counsel, who appears for
the State official respondents as well as Sri
Sankalp Narain, learned counsel, who
appears for the respondent nos.4 and 5.

2. Since a statement has been made by
the learned counsel for the rival parties
that they do not propose to file any
further affidavits thus with their consent
the writ petition is being decided at the
fresh stage.

3. The case of the writ petitioner is
that there is an institution by the name of
S.M. National Inter College Machhati,
District Ghazipur, fourth respondent, which